TONY ANOZIA v. THE ATTORNEY GENERAL, LAGOS STATE
(2010)LCN/3846(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of June, 2010
CA/L/140/08
RATIO
TORT: MEANING AND NATURE OF LIBEL
Libel is a defamatory statement expressed in a fixed medium, especially writing, a picture, sign, or electronic broadcast. It is classified both as a crime and a tort, albeit no longer prosecuted as a crime. Also termed defamatory libel. See Black’s Law Dictionary, 8th Edition, 2004 Edition at 934; UBN Ltd v. Oredein (1992) 6 NWLR (pt. 247) 355 at 371 paras. F – H; Sketch Publishing Coy Ltd v. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678; Nwachukwu v. Nnoremele (1957) 2 ERLR 50.
Contrary to the contention of the Appellant, it is a well settled principle of law that the tort of libel could be committed not only against a natural person, but also against a corporate or legal entity. Therefore, an action for libel is undoubtedly maintainable not only at the instance of a natural person, but also a juristic person. See UBN LTD v. Oredein (supra) at 371 – 372 paras. H – B 379 paras. A – B, respectively, per Niki Tobi, JCA(as he then was). PER I. M. M. SAULAWA, J.C.A
ACTION: COUNTER-CLAIM; WHAT CONSTITUTES A COUNTER-CLAIM
A counter-claim is, to all intents and purposes, a distinct and independent action, although the defendant may, for the sake of convenience and speed, in-corporate it in the statement of defence thereof. See Ogboma v. AG Imo State (1992) 1 NWLR 647 at 675; Odunsi v. Bamgbala (1995) 5 SCNJ 276 at 286; Dabup v. Kolo (1993) 12 SCNJ 1. PER I. M. M. SAULAWA, J.C.A
ACTION: WHAT IS A CAUSE OF ACTION
In the same vein, the term cause of action denotes a group of operative facts giving rise to one or more bases for suing. It is a factual situation that entitles a plaintiff to obtain a remedy in a court from a defendant. An action of pleading is said to have disclosed a reasonable cause of action or defence if, on the facts alleged therein, the claim or defence has some chance of success. Thus, once a claim or defence raises some issues of law or fact calling for determination by the court, it will not be struck out. See Drummond Jackson v. British Medical Association (1970) 1 WLR 688: Wenlock v. Moloney (1965) 1 WLR 1238; Moore v. Lawson (1915) 3 TLR 418; Roy v. Prcor (1971) AC 470. PER I. M. M. SAULAWA, J.C.A
ACTION: WHAT IS CONSIDERED IN DETERMINING THE ISSUE OF CAUSE OF ACTION
It should be reiterated, that when determining the issue of cause of action, it is totally irrelevant to consider the merit of the claim. What is important, at this stage, is to critically examine the averments in the pleadings and see if they disclose any reasonable cause of action, or raise some questions fit enough to be decided by a judge. See Ogunsanya v. Dada (1992) 4 SCNJ 162 at 169; Idowu v. Akinwunmi (1961) ALL NLR 858. PER I. M. M. SAULAWA, J.C.A
JUSTICES
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
Between
TONY ANOZIA Appellant(s)
AND
1. THE ATTORNEY GENERAL, LAGOS STATE
2. THE JUDICIARY, LAGOS STATE
3. THE CHIEF JUDGE, LAGOS STATE
4. THE CHIEF REGISTRAR, LAGOS STATE Respondent(s)
I. M. M. SAULAWA, J.C.A: (Delivering the Leading Judgment) This is an appeal against the interlocutory decision of the High Court of Lagos State, Lagos Judicial Division, delivered on 26/10/07 by the Hon. Justice T.A.O. Oyekan-Abdullahi, J.
It is discernible from the record of appeal, that on 25/01/05 the Appellant filed in the court below a writ of summons (LD/91/2005), seeking two reliefs against the four Respondents, jointly and severally, viz:
“1) A Declaration that the LOSS OR WITHHOLDING OR DESTRUCTION of the case file in suit No LD/197/90 since May, 2004 by the Lagos State Judiciary wherein the Plaintiff is claiming Aggravated Damages of N10 Million against the Defendant as it terminates the plaintiff’s right to seek redress in the Lagos State Court of Nigeria or causes undue delay in realising the redress.
2) The sum of N20 Million being Special and General Damages from the Defendants jointly and severally for the LOSS OR WITHHOLDING OR DESTRUCCTION OF THE CASE FILE IN SUIT No. LD/197/90 which was under their LEGAL custody and which they failed to produce since May, 2004, for due adjudication inspite of repeated demands by the plaintiff and thereby failed in their DUTY OF CARE TO THE PLAINTIFF of safe custody and availability of the file for adjudication.”
However, by the statement of claim thereof, filed along with the writ of summons on 25/01/05, the Appellant sought the following distinct reliefs: “a. A Declaration that the conduct of Lagos State Judiciary is negligent.
b. N20 Million being Special and General Damages.”
On the part thereof, the Respondents filed a joint statement of defence and counter claim, on 22/9/05, denying the entire claim, thereby counter claiming thus:
“25.1. The sum of Fifty Million naira (N50,000,000.00) only being general damages for libel maliciously published of and concerning the defendants in the letter, dated nod October, 2004 and the statement of claims dated 19th of January, 2005.
25.2. An order that the claimant retract the aforesaid libelous publication and tender a clearly worded apology to the defendants.”
In the course of the trial of the suite, the Appellant filed a notice of preliminary objection, dated 29/9/05, which was predicated on the following grounds:
“(1) That the counter claim is not ALIGNED to the Claimant’s claim in NEGLIGENCE.
(2) That the counter claimants have NO LOCUS STANDI and therefore the court has NO JURISDICTION OVER THE COUNTER CLAIM.
(3) The facts as contained in the counter claim in the CON OF WRIT DO NOT DISCLOSE A CAUSE OF ACTION.
(4) There can be NO JOINT claim in an action in defamation.
(5) The counter claim is AN ABUSE OF THE PROCESS OF COURT.”
By the said preliminary objection, the Appellant urged upon the court below to strike out the counter claim in limine with substantial costs thereto. At the conclusion of the hearing of the learned counsel’s submission on the preliminary objection, the lower court delivered a ruling, on 26/10/07, to the effect, inter alia, thus:
“In my opinion, to discountenance the counter claim at this stage could be over reaching and unacceptable in view of the spirit of the new Rules; which provides for disclosure and counter claim.
For this reason therefore, it is safe to proceed with the defendant’s counter claim, and urge all parties to forward, file and conclude pleading within 14 days interval of service on each other and accordingly for now, the preliminary objection is struck out and no cost is awarded. Pre-Trial Conference is fixed for 6th day of December, 2007.
This is my Ruling.”
The Appellant was dissatisfied with the ruling of the lower court in question. He accordingly filed a notice of appeal, on 05/11/07, which is predicated on eight grounds of appeal.
The record of appeal was deemed to have been transmitted to this court on 27/01/09, with the leave of court duly granted to the Appellant on that date.
Parties filed and served their respective briefs of argument. The Appellant’s brief of argument and reply brief were filed on 18/02/09 and 24/3/09, respectively.
The Appellant has raised a total of eight issues in the brief thereof, to wit:
” ISSUE ONE:
Whether a ruling that addresses only one of the five issues raised in the preliminary objection is a proper ruling or a farce and dereliction of duty.
ISSUE TWO:
Whether a counter claim in defamation is properly aligned to a claim in negligence.
ISSUE THREE:
Whether inanimate offices, non humans can maintain an action in defamation or have locus standi
ISSUE FOUR:
Whether a claim in defamation by non humans discloses a cause of action.
ISSUE FIVE:
Whether two or more persons can jointly claim in defamation.
ISSUE SIX:
Whether counsel, in the discharge of his professional duty, writing to the counter claimants to inquire about his missing case file, is not absolutely privileged, and thus the court is robbed of jurisdiction.
ISSUE SEVEN:
Whether originating processes that do not comply with the rules of court and requirements of libel, are properly before the court thus vesting the court with jurisdiction.
ISSUE EIGHT:
Whether upon the processes filed as counter claim for defamation revealing non cause of action, wrongful joinder, non human claimants, non compliance with rules of court, statement made on occasion of absolute privilege, and an abuse of court process, the lower court shouldn’t have dismissed the entire counter claim.”
The Respondent, on the other hand, has raised four issues in the brief thereof, viz:
“1. Whether the ruling of the trial court requires a particular form.
2. Whether the respondents counter claim in defamation alighs (sic) with the appellant’s claim in negligence.
3. Whether in animate (sic) offices maintain an action in defamation or have locus stand.
4. Whether counsel writing to the respondents requesting for file is absolutely privileged robbing court of jurisdiction.”
On issue No 1, it was submitted by the Appellant that the considering of only one of the five grounds of the preliminary objection by the lower court has resulted in dereliction of duty, thereby rendering the ruling in question a farce.
See Nduka v. Ezenwaku (2001) 6 NWLR (pt. 709 495 at 511 paras. B- C.
On issue No.2, the provision of order 17 Rule 7 of the Lagos State High (Civil Procedure) Rules, 2004 cited by the learned trial Judge cannot, allegedly, be talking of all claims that are not aligned to be lumped in one suite.
On issue No.3, it was argued that the offices of 1st – 4th Respondents cannot claim for defamation. As such, the counter claim has no claimant. That the Respondents, being a mere aberration, lack locus standi to sue. See Emeagwara v. Star Printing And Publishing Co. Ltd (2000)10 NWLR (pt.676) 459 at 515 paras E- F; Newswatch Communications Ltd v. Atta (2000) 2 NWLR (pt. 646) 592 at 606 paras. E- G.
On issue No.4, it was submitted, that the counter claim by non humans (1st – 4th Respondents) discloses no cause of action, thus should be dismissed. The case of Iloabache v. Philips (2000)14 NWLR (pt.686) was cited and relied upon for the definition of cause of action.
On issue No 5, it was postulated that the 4 Respondents cannot maintain a joint action because each one of them has a distinct and separate integrity or reputation to protect. The court has, therefore, been called upon to strike out the counter claim, and urge the 4 Respondents to each file a separate action.
On issue No.6, it was argued that communication by counsel in the course of litigation by a party or counsel is covered by an absolute privilege. See Salaudeen v. Mamman (2000)14 NWLR (pt. 686)63 at 75 paras. A.
On issue No.7, it was submitted that the suit is not properly before the court, thus the court cannot assume jurisdiction. See Madukolu v. Nkemdilim (1962) NSCC374.
On issue No.8, it was postulated that in the instant case there is no sustainable action, thus the court should have dismissed it in limine. See Akpan v. Julius Berger (Nig) Ltd (2002) 17 NWLR (pt. 795) 1 at 23 – 25; Badejo v. Fed. Min. of Education (1996) 8 NWLR (pt. 464) 15 at 45.
As alluded to above, the Respondents have on their own part raised four issues in the joint brief thereof. On issue No.1, it was submitted, inter alia, that the fact that the lower court did not list out all the grounds raised by the Appellant, and considered only one issue, is not enough ground to set aside such a ruling. That, in the instant case, the Appellant failed to show that the conclusion or decision of the lower court is perverse. See Ogba v. Onwuzu (2005)14 NWLR (pt. 9451331; AG Federation v. Abubakar (2007) 10 NWLR (pt. 10410) at 47.
On issue No.2, it was argued that a counter-claim is an independent action that needs to relate to the plaintiff’s claim, or arises out of the same transaction.
See Effiom v. Ironbar (2000)11 NWLR (pt. 678) 344 at 347.
That, a counter claim is not merely a defence to the plaintiff’s claim, but in substance a cross action. See Oragbade v. Onitiju (1962) 1 All NLR 33 at 36; Ige vs. Farinde (1994) 985 Onu (pt. 2) 284 at 305; Lumley vs. Brook (1889) 41 Ch. D. 323; Fidelis Nwandialo: Civil Procedure in Nigeria (2nd Edition) 393 – 394; Order 17 Rule7 High Court Of Lagos State (Civil Procedure) Rules, 2004.
It was further argued, that the learned trial judge was right for declining to discountenance the Counter Claim of the Respondent.
On issue No.3, it was submitted that an action for libel is maintainable not only at the instance of a natural person, but also a juristic person. That, one cannot hide under section 39 of the 1999 Constitution to infringe upon another person’s right. See section 45 (1) (b) of the 1999 constitution; Global Transport Ocenico S.A v. Free Ent. (Nig) Ltd (2001) 5 SC, (2001) 5 NWLR (pt.706) 420; Okon v. Ubi (2006) All FWLR (pt. 329) 717 at 749 – 750 para 11.
On issue No.4, it was postulated that the ground of appeal is incompetent.
It is not a ground of law, not couched as ground of appeal, thus should be discountenanced by the court.
I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument, as well as the record of appeal in its entirety. It should be pointed out, at this point in time, that none of the 8 issues raised in the Appellant’s brief has been tied down to or indicated to be distilled from any of the 8 grounds of appeal. Likewise, none of the four issues formulated in the Respondent’s brief was indicated to have been distilled from any of the 8 grounds of appeal in question. Regrettably, the learned counsel’s failure to specifically relate or predicate the issues raised in their respective briefs upon the 8 grounds of appeal has amounted to an infraction of the well cherished principles guiding the practice and procedure of this court.
By virtue of the provision of order 17 Rule 3 (1) of the Court of Appeal Rules, 2007, an ideal brief of argument, which may be settled by counsel, shall contain, inter alia, what are in the appellant’s view, the issues arising in the appeal, as well as grounds of appeal, amended or additional grounds of appeal, as the case may be. It is a well settled principle of law, that what counsel are supposed to argue in briefs of argument are the issues formulated therein.
Grounds of appeal are not argued in a brief. However, such issues must relate to the grounds of appeal, otherwise they are liable to be struck out for being incompetent. See Oceanic Bank Int. Ltd v. Chitex Ind. Ltd. (2001) FWLR (pt. 4) 678; Dada v. Dosunmu (2006) 18 NWLR (pt 1010) 134; Idika v. Erisi (1988) 2 NWLR (pt. 78) 563; Animashaun v. Uch (1996) 10 NWLR (pt. 476) 65; ANPP v. Rec Akwa Ibom State (2008) 8 NWLR (pt. 1090) 453 at 511 paras. B -D.
In the case of ANPP v. REC (supra) at 527 paragraphs E – F, this court was reported to have aptly reiterated the trite and well settled principle thus:
“It is a fundamental doctrine that issues for determination must be formulated or distilled from grounds of appeal which in turn are predicated upon the ratio decidendi of the decision of the court in the judgment or ruling appealed against. See Dalek (Nig.) Ltd v. Ompadec (2007) All FWLR (pt. 364) 204 at 226 paragraphs F- H.” Per Saulawa, JCA.
However, the flaws inherent in the learned counsel’s respective briefs, notwithstanding, the cherishable current trend in the Nigerian courts ensures that substantial justice (as against the highly misplaced technical justice) is accorded to all manner of parties, at all times, without fear or favour, affection or ill will. See .Ogboru v. Ibori (2006) 17 NWLR (pt.1009) 542 at 574 paras. G –
H; 585 – 586 paras. B – D; Ogunbi v. Kosoko (1991) 8 NWLR (pt. 210) 511 Ekanem v. Akpan (1991) 8 NWLR (pt. 211) 616; Ezegbu v. Fatb Ltd (1992)1 NWLR (pt. 220) 699; Danache Comm. Ltd v. Aikhomu (1994) 2 NWLR (pt.327) 420; ANPP v. REC. Akwa Ibom (supra) at 510, paras. E-F.
I would want to believe that this appeal should aptly be determined on the following three issues:
1. Whether the Respondents have locus standi to file the counter claim.
2. Whether the counter claim discloses any reasonable cause of action.
3. Whether the lower court was right in declining to discountenance the Respondents’ counter claim.
In formulating the above three issues, I have adverted my mind to the 8 grounds of appeal, contained in pages 26 – 29 of the record of appeal, as well as the various issues raised in the respective briefs of the parties. Issue No.1 is predicated upon grounds 3 & 5 of the grounds of appeal. Issue No.2 is distilled from grounds 2 & 4 of the grounds of appeal. Issue No. 3 is predicated on grounds 1, 6, 7 & 8 of the grounds of appeal.
ISSUE No.1:
The Appellant’s issues 3 & 5 are subsumed in this issue. As alluded to above, the issue No. 1 raises the vexed question of whether the Respondents have the locus standi to institute the counter claim in question against the Appellant. The term locus standi is of Latin derivative, meaning a place of standing. It denotes the right of a party to institute an action in a court of law, or seek judicial enforcement of a duty or right.
To have a locus standi, or standing for short, to institute an action in a court or tribunal, a plaintiff must establish (1) that the act being challenged has caused the plaintiff actual injury; (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. See Black’s Law Dictionary, 8th Edition 2004 at pages 960 – 1442.Basically, the concept of locus standi, applicable to civil proceedings in the Nigerian Courts, is traceable to the provision of the constitution of the Federal Republic of Nigeria 1999, most especially section 6(6)(b) thereof. By the said section 6(6)(b) of the 1999 constitution, the judicial powers of the courts shall extend to all matters between persons or between government or authority, and any person in Nigeria, and to all actions and proceedings relating thereto. For the determination of any question regarding the civil rights and obligations of the complainant. The complainant must show, that the act complained of affects rights and obligations peculiar or personal thereto. He must also show that his private rights have been infringed or injured, or there is a threat of such infringement or injury. See Adesanya v. President of Nigeria (1981) 2 NCLR 358 RE Ijelu & Ors v. LSDPC (Nig.) Ltd (1992) 9 NWLR (266) 414): K. Line Inc. v. K.R. Int. (Nig) Ltd (1993) 5 NWLR (pt.292) 159; Ilori v. Benson (2000) FWLR(pt. 26) 1846 at 1857 paras. E- F
In order to determine whether or not a party has a locus standi to file an action in a court of law, the cause of action brought before the court must be critically examined. Two tests of determining whether a party has special or sufficient interest in instituting the action become pertinent. One, whether the complainant could have been joined as a party to the suit if some other party commenced the action. Two, whether the complainant will suffer some hardship or injury arising from the litigation if some other person instituted the action. See K. LINE INC. v. KR INT (Nig.) Ltd (supra) 159; Ilori v. Benson (supra) at 187 paras F-G.
In the instant case, the Suite No. LD/91/2005 was instituted on 20/01/05 in the lower court by the Appellant, against each of the present four Respondents
In reaction to the said Suit, the Respondents filed their Statement of defence, wherein they incorporated the controversial counter claim, thus:
COUNTER-CLAIM
15. The defendants repeat paragraphs 3, 4, 5, 6,7, 8, 9, 10 and 11 of the statement of defence.
16. The defendants aver that since the inception of the Administration of Executive Governor of Lagos State in 1999, Asiwaju Bola Ahmed Tinubu, the Judiciary in Lagos State has been rated high particularly in the area of quick dispensation of justice.
17. The defendants aver that necessary facilities were put in place, such as the new High Court premises, new High Court Rules among others to facilitate quick disposal of matters in court.
18. The defendants aver that despite the new High Court Rules that make provision for front-loading the claimant has refused to comply with the rules by filing necessary papers in Suit LD/197/90 pending before Honourable Justice Idowu.
19. The defendants aver that instead of complying with rules, the claimant has now resorted to blackmailing and disparaging the defendants.
20. On the 19th day of January 2005 the claimant maliciously published in the statement of claim in suit LD/91/05.
“The attitude of the defendants snacks of bureaucratic irresponsibility, non-challant and cold abandon and is tantamount to GROSS NEGLIGENCE.
21. On the 22nd of October, 2004 the claimant also maliciously published through a letter addressed to the Administrative Judge, High Court, Lagos the following defamatory word:
“You see MY GOOD LORD, what UNKNOWN Lawyers go through IN YOUR JUDICIARY IS IT CORRUPTION OR WARFARE?”.
“The question is: IS THERE ANY SUBIERRANFAN INFLUENCE in respect of this case?
22. The defendants aver that the publication against the defendants is false.
23. The defendants aver that the publication of 22nd October, 2004 and 19th of January, 2005 suggest or mean that the defendants are corrupt, inefficient and grossly irresponsible.
24. The defendants aver that the claimant has failed to retract the defamatory publication despite repeated demands.
25. The defendants claims against the claimant:
25.1. The sum of Fifty Million naira (50,000.000.00) only being general damages for libel maliciously published of and concerning the defendants in the letter dated 22nd October, 2004 and the statement of claim dated 19th of January, 2005.
25.2. An order that the Claimant retract the aforesaid libelous publication and tender a clearly worded apology to the defendants.”
Undoubtedly, the 1st – 4th Respondents are formidable and rather indispensable statutory functionaries of the Lagos State Government. The office of the 1st Respondent came in to being by virtue of the provision of section 195 of the 1999, which provides thus:
“195. (1)There shall be an Attorney-General for each state who shall be the Chief Law officer of the state and commissioner for Justice of the Government of that state.”
The fundamental powers characterizing the office of the 1st Respondent are traceable to section 211 of the said constitution which provides that-
“211. (1) The Attorney-General of a state shall have power-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any law of the House of Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a state shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The term judiciary in essence denotes the branch of government, popularly known as the third arm of government, that is constitutionally responsible for interpreting the laws and administering justice. See Black’s Law Dictionary 8th Edition, at 864. It is also termed ‘judicature’, which denotes the act of judging or administering justice, by the application of the rule of law, through duly constituted courts. See chapter vii, sections 230 – 296 of the 1999 constitution.
By virtue of the provision of section 6 of the 1999 constitution, the judicial powers of the Federation shall be vested in the courts duly established for the Federation, whilst the judicial powers of a state shall be vested in the courts duly established for the state, subject as provided by the constitution.
The office of the 3rd Respondent is equally a creature of the constitution.
See sections 270 & 271 (1) – (5) of the 1999 constitution, regarding the appointment and qualifications of a state chief judge; Lagos State High Court Law, CAP. H3 Laws of Lagos State of Nigeria, 2004; High court (civil procedure) Rules, 2004, respectively.
The office of the 4th Respondent has not been specifically provided for under the constitution. However, by virtue of the Third Schedule, part II, 6, the State Judicial Service commission has been conferred with the power-
“to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court… and all other members of the staff of the judicial service of the state not otherwise specified in this constitution.”
See also High Courts Law, CAP. H3 (supra), most especially section 83 which provides thus:
“83. Chief Registrar and other officers
(1) The Judicial Service Commission may appoint a Chief Registrar of the High Court, and such other registrars, deputy registrars and other officers as may be deemed necessary.
(2) There shall be a Probate Registrar of the High Court, who shall be the Chief Registrar or some other registrar or deputy registrar nominated by the Chief Judge.
(3) The Chief Registrar shall perform such duties in execution of the powers and authorities of the High Court as may be assigned to him by rules of court or, subject thereto, by any special order of the Chief Judge.
(4) The registrars, deputy registrars and other officers appointed under this section shall perform all such duties with respect to business before the High Court as may be directed by rules of court or any order of the Chief Judge.”
As alluded to above, in determining whether a plaintiff has a locus standi to institute an action, it’s only the originating process, i.e the writ of summons, originating summons (motion), or statement of claim (where filed), that the court will have to examine. It is that originating process alone which will determine the plaintiff’s locus Standi. See Global Trans Oceanico S.A. v. Free Ent. (Nig.) Ltd (2001) 5 NWLR (pt. 706) 426 at 443 paras. A-F.
The Appellant’s challenge to the Respondents’ locus standi is solely predicated on the fact that they are ‘inanimate offices, and non humans’, as such they cannot allegedly have locus standi to maintain an action in defamation. It’s a truism, that a dispute may involve the legal interests of individuals, corporate bodies, ordinary statutory bodies, firms, governments, and clubs and associations, etc.
It is indeed a trite general principle of law, only natural persons and juristic persons can, or are competent to, sue or be sued. See Fawehinmi v. Nigerian Bar Association (No.2) (1989) 2 NWLR 358 at 595; Management Enterprises Ltd v. Otusanya (1987) 2 NWLR 179; Knight and Seple v. Dove (1964) 2 All ER 307 at 309.
The term natural person indisputably denotes a human being. Contrariwise, the term juristic person is an entity, an artificial person, that is duly accorded recognition by law as having the rights and duties of a human being. In this sense, the term juristic person includes corporations, partnerships, and such other associations, whether incorporated or unincorporated.
Juristic corporate bodies in Nigeria are largely of two categories.
Companies registered under PART A of the Companies and Allied Matters Act, CAP Laws of the Federal Republic of Nigeria, 2004 and statutory corporations and trustees of associations registered under PART C of the same Act.
The legal personality of a statutory corporation is conferred upon it either expressly or impliedly by the statute creating same. Ideally, the statute creating a statutory corporation provides therein to the effect that the corporation shall be a body corporate with perpetual succession and common seals, and may sue and be sued in its corporate name.
However, it may be correct to say that, it’s not every statutory body that is vested with the hallmarks of a juristic person, although it’s conferred with certain specific duties or functions. It is generally accepted that, bodies created under the constitution and duly conferred with certain statutory powers and duties are juristic persons, even though not expressly so designated. See Ibrahim v. Judicial Service Commission (1998) 12 SCNJ 255, wherein the Supreme Court held that the Judicial Service Committee, one of the four statutory bodies established at the state level under section 178(1) of the 1979 constitution is a corporation aggregate and/or legal personality capable of suing and being sued.
In the same vein, it was held that the Attorney of a state (as well of the Federation) created under section 176(1) of the same constitution is a legal personality capable of suing and being sued. None of these bodies is expressly endowed by the constitution or any other law with the attributes of a body corporate.
Undoubtedly, a body created by a statute for the discharge of specific public functions is capable of being sued in a claim for declaration relating to those functions. See Thomas v. Local Government Service Board (1965) NMLR 310 at 312, wherein the Supreme Court held, inter alia, per Brett JSC, thus:
“We reject the submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for declaration, and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.”
As aptly alluded to in the case of Thomas v. Local Government Service Board (supra), liability to be sued, say in tort, and liability to be sued for a declaration are distinguishable. Normally, rights and obligations under tort or contract are inherently accorded to natural persons. Other juristic persons are imbibed with such rights by force of law.
It’s indeed trite, that the Government of the Federation or of a State is constitutionally endowed with a corporate entity. Thus, each can sue or be sued.
See sections 6(6)(b); 36 (1), (2); 232(1) of the 1999 constitution. Contrariwise, the same cannot be said of the various un-incorporated ministries and functionaries, etc of Government. Such unincorporated government functionaries cannot therefore sue or be sued, except where anyone thereof falls within the principles in THOMAS case (supra).
Libel is a defamatory statement expressed in a fixed medium, especially writing, a picture, sign, or electronic broadcast. It is classified both as a crime and a tort, albeit no longer prosecuted as a crime. Also termed defamatory libel. See Black’s Law Dictionary, 8th Edition, 2004 Edition at 934; UBN Ltd v. Oredein (1992) 6 NWLR (pt. 247) 355 at 371 paras. F – H; Sketch Publishing Coy Ltd v. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678; Nwachukwu v. Nnoremele (1957) 2 ERLR 50.
Contrary to the contention of the Appellant, it is a well settled principle of law that the tort of libel could be committed not only against a natural person, but also against a corporate or legal entity. Therefore, an action for libel is undoubtedly maintainable not only at the instance of a natural person, but also a juristic person. See UBN LTD v. Oredein (supra) at 371 – 372 paras. H – B 379 paras. A – B, respectively, per Niki Tobi, JCA(as he then was).
There is every good reason for me to believe that any of the 1st – 4th Respondents is capable of being subjected to state of contempt and odium. It is a notorious fact, that ever since the present political dispensation came into being in 1999, the judiciary of this country, nay the judicial officers manning the court, had literally been on trial in the public court. Very recently, this court deemed it expedient to counsel thus:
“Thus, as pointed out there above, to grant prayer No.5, at this crucial interregnum, would undoubtedly be confusion, chaos and anarchy. By embarking on such an inglorious misadventure, possibly the court would have undoubtedly succeeded in subjecting itself, nay the entire Nigerian judiciary, to a state of odium, contempt, and a spineless laughing stock …
. . . the judiciary must at all times strive to weather the storm, so to say, and be seen to have risen up to the daunting, albeit not insurmountable, challenges before it; otherwise it would one day wake up from the slumber thereof only to realize that it’s lost its prestige, formidable authority and legitimacy. And I dare reiterate, that the alternative to a virile, courageous, fearless, incorruptible and visionary judiciary is anarchy i.e. lawless society or nation where private self help reigns supreme.”
See Alhaji Carba Mohammed Gadi v. Barrister Babayo A. Male & 8 Ors Appeal No. CA/J/232M/09, Ruling dated 10/12/09: Court of Appeal Jos Judicial Division (unreported) per Saulawa, JCA.
In view of the foregoing postulations, there is every reason for me to hold that the Respondents have the locus standi to institute the counter claim duly incorporated in the joint statement of defence thereof. As alluded to above, in determining whether a plaintiff (or counter claimant, as in the instant case) has a locus standi to sue (or to counter claim), it is only the statement of claim (or counter claim) filed in the trial court that should be considered.
In the instant case, paragraphs 18, 20, 21, 22, 23 & 24 of the counter claim show clearly the extent of the claim of the Respondents against the Appellant.
This alone accords the Respondents the right to sue (or counter claim) the Appellant. And whether or not the Respondents will succeed in proving the counter claim is definitely irrelevant at this stage. That is within the competence of the trial court to determine.
The answer to issue No.1 is thus in the affirmative, and same is hereby resolved against the Appellant.
ISSUE NO.2:
The second issue raises the vexed question of whether the counter claim raises any cause of action. As alluded to above, a counter claim is essentially an independent action. It does not have to relate to plaintiff’s claim, or arise out of the same transaction. See Effiom v. Ironbar (2000) 11 NWLR (pt. 678) 344 at 347.
Most undoubtedly, a counter claim, by the very distinctive nature thereof, is not merely a defence to the claim of the plaintiff, but rather it’s substantially a cross-action. See Oragbade v. Onitiju (1962) 1 ALL NLR 33 at 36; Ige v. Farinde(1994) 985 Onu (pt. 284) at 305; Lumley v. Brooks (1889)41 CH D. 323.
Order 17 Rule 7 of the Lagos State High Court (Civil procedure) Rules, 2004.
It was submitted, inter alia, by the Appellant that under issue No.2 at page 3 of the brief thereof that :
“The practice of counter claim after a suit had been instituted against a defendant is governed by the same reasoning that informs the practice of consolidation of suits.”
In view of the above postulations vis-a-vis the authorities alluded thereto, I would want to believe that the above contention of the Appellant is farther from the truth. A counter-claim is, to all intents and purposes, a distinct and independent action, although the defendant may, for the sake of convenience and speed, in-corporate it in the statement of defence thereof. See Ogboma v. AG Imo State (1992) 1 NWLR 647 at 675; Odunsi v. Bamgbala (1995) 5 SCNJ 276 at 286; Dabup v. Kolo (1993) 12 SCNJ 1.
In the same vein, the term cause of action denotes a group of operative facts giving rise to one or more bases for suing. It is a factual situation that entitles a plaintiff to obtain a remedy in a court from a defendant. An action of pleading is said to have disclosed a reasonable cause of action or defence if, on the facts alleged therein, the claim or defence has some chance of success. Thus, once a claim or defence raises some issues of law or fact calling for determination by the court, it will not be struck out. See Drummond Jackson v. British Medical Association (1970) 1 WLR 688: Wenlock v. Moloney (1965) 1 WLR 1238; Moore v. Lawson (1915) 3 TLR 418; Roy v. Prcor (1971) AC 470.
It should be reiterated, that when determining the issue of cause of action, it is totally irrelevant to consider the merit of the claim. What is important, at this stage, is to critically examine the averments in the pleadings and see if they disclose any reasonable cause of action, or raise some questions fit enough to be decided by a judge. See Ogunsanya v. Dada (1992) 4 SCNJ 162 at 169; Idowu v. Akinwunmi (1961) ALL NLR 858.
In the instant case, considering the nature and circumstances surrounding the counter claim incorporated in the statement of defence of the Respondents, there is no reasonable ground for me to hold that the pleadings therein cannot succeed at this stage in time. Thus, issue No.2 is answered in the affirmative, and same is hereby resolved against the Appellant.
ISSUE No.3
Issue No.3 raises the question of whether the lower court was right in declining to discountenance the Respondents’ counter claim. There is no gainsaying the fact, that having resolved both issues 1 & 2 against the Appellant, the answer to issue No.3 ought to be in the affirmative. And I so hold. As alluded to above, the learned trial judge came to the conclusion in the ruling thereof, thus
“In my opinion, to discountenance the counter claim at this stage could be over reaching and unacceptable in view of the spirit of the new Rules; which provides for disclosure and counter claim.
For this reason therefore it is safe to proceed with the defendants’ counter claim, and urge all parties to forward, file and conclude pleading within 14 days interval of service on each other and according for now, the preliminary objection is struck out and no cost is awarded. Pre-trial conference is fixed for 6th day of December, 2007.”
I think, in view of the aforementioned postulations, I cannot agree more with the above conclusion reached by the learned trial judge in the ruling in question. It is a trite and fundamental principle of law, that findings of trial court that are evidently borne out of credible evidence and laid down rule of law ought not be set aside by an appellate court, unless such findings are either perverse or unsupported by credible evidence. See Enang v. Adu (1981) 11 .12 SC 25; Theophilus v. The State (1996) 1 NWLR (pt. 423) 139; Igbi v. State (2000) 3 NWLR (pt. 648) 169; Agbaje v. I Adigun (1993) 1 NWLR (pt. 269) 261; ANPP v. Akwa Ibom State REC & Ors (2008) 8 NWLR (pt. 1090) 453 at 528 paras A – C, respectively.
In view of the above reasoning, issue No. 3 is equally answered in the affirmative, and same is hereby resolved against the Appellant.
Before putting the last dot in this judgment, I have deemed it expedient, without prejudice to the determination of the substantive suit, to reiterate that the legal profession, popularly known as the ‘learned profession’, is most undoubtedly the only honourable profession, given its far reaching and cherishingly indispensable impact on the society. Thus, both the judges and lawyers as privileged members of the Exclusive club of Learned Gentlemen, are under the onerous duty of upholding the well cherished tenets and ethics laid down in the Legal Practitioners Act, 2004, the Rules of professional conduct for Legal practitioners made pursuant to the Act. In the same vein, as judicial officers, judges are duty bound to observe, preserve and uphold the various provisions of the 1999 constitution and the code of conduct for Judicial Officers.
It is trite, that a legal practitioner has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, thus shall not engage in any conduct which is unbecoming of a member of the honourable and highly prestigious legal profession. See ANNP v. Recakwa Ibom State (2008)8 NWLR (pt. 1090) 453 at 526 paras E- G and 528 paras E – H, wherein this court aptly held, inter alia, thus:
“A lawyer has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and thus shall not engage in any conduct which is un becoming of a legal practitioner …
It is trite, that the learned counsel as officers in the temple of justice have a duty to accord the tribunal’s chairman and members due respect, courtesy, and dignity. See Rule 35 of the Rules of Professional Conduct for Legal Practitioners (supra). In my considered view, the counsel’s duty to treat the tribunal (and court alike) with respect, courtesy, and dignity does not begin and end in the precint of the four walls of the Tribunal building only. The counsel has an obligation to imbibe those sterling qualities in his written submissions and other processes including notice and grounds of appeal and brief of argument. Thus, in my view, it would amount to an infraction of rule 35 (supra] whereby a counsel, as in the instant case, falsely and rather mischievously, if not predatorily, accused a Judge of bias.” Per Saulawa, JCA.
Regrettably, I have observed that the Appellant has a very discourteous flare of referring to a lady judge in his brief of argument and reply brief in the third person pronoun – ‘she’ or ‘her’. It is absolutely unethical and rather discourteous, to say the least, for the learned counsel to have referred to the Hon. learned lady judge in the third person pronoun rather than as a learned trial judge. See Global Trans. Oceanic S.A v. FREE ENT. (Nig) Ltd (2001)5 NWLR (pt. 706)426 at 442 paras. B – C, wherein the Supreme Court, per Kalgo, JSC, authoritatively and rather aptly, observed thus:
‘Issue two of the respondent before the Court of Appeal as seen in its brief on page 58 of the record reads’
‘whether she concluded correctly that the plaintiff had no locus standi.’
It is common ground that the trial Judge in this case was a lady, and the word ‘she’ in issue 2 referred to the learned Judge. This is a very bad way of showing discourtesy to a lady judge or infact any Judge at all by referring to him or her in third person pronoun. It is absolutely unethical and unpardonable and whether the Judge is a ‘he’ or ‘she’ reference should be made to the ‘learned trial Judge or learned Judge or even Hon. Judge’. I was very disturbed and disappointed to observe that this brief was coming from the chambers of a respectable Senior Advocate of Nigeria. I hope this type of thing will never happen again.”
Hence, having regard to the fact that all the three issues have been resolved against the Appellant, I hereby without any further hesitation hold that the appeal lacks any substantial merit, and same is dismissed by me. The ruling of the lower court, dated 26/10/07, is hereby affirmed.
No order as to costs.
MONICA BOLNA’AN DONGBAN-MENSEM .J.C.A, JP: I agree with my learned brother Saulawa, JCA who prepared the lead Judgment and found no merit in this appeal. The decision of the trial court dated the 26th October, 2007 is hereby affirmed as in the lead Judgment. No order is made as to cost in the lead Judgment and I too make none.
PAUL ADAMU GALINJE, J.C.A. I have had the privilege of reading before now the judgment just delivered by my learned brother, Saulawa JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
For the same reasons as articulated in the lead judgment, I too find the appeal lacking in merit and same is hereby dismissed by me.
I make no order as to cost.
Appearances
Tony AnozieFor Appellant
AND
Mrs. Funmilayo OgunsanwoFor Respondent
